Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 13 March 2012

On criminalising violence against women

It was announced last week, on International Women's Day, that the UK is to introduce new laws against sexual harassment. (The press report says UK, which is the signatory to the Convention, though in the context presumably this means England and Wales. Scotland would have to introduce separate offences if necessary). This initiative is linked to the signing by the UK of the Council of Europe Convention on Violence Against Women. This provoked a certain degree of comment, as to whether this would criminalise wolf whistling or sexist remarks, and in view of this it is worth taking a look at what the Convention actually says as a means of assessing its significance.

The Convention basically sets out a number very broad aims. These include such statements as: "to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence"; and to "design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence". These broad statements are then followed up with requirements to introduce a series of much more specific initiatives in areas ranging from education, victim support and prevention and treatment services. And it is here (in Articles 33-42) that the requirements on criminalisation of certain conduct are outlined. These Articles require a commitment from signatories to criminalise a range of conduct, from sexual and physical violence, to stalking, forced marriage, or female genital mutilation and forced sterilisation. And it is here that we find the provision on sexual harassment (Article 40):
Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction".
Does this amount to a requirement to criminalise wolf whistles or sexist remarks? It is hard to know as the provision is vague. On the one hand, the explanatory notes on the provision are keen to stress that this does not require a criminal response, and some 'other legal sanction' may be appropriate. And even if criminal law were used it is not clear whether the scope of the provision is so broad. Moreover, the explanatory notes seem to envisage that sexual harassment will occur in a relation where the parties know each other and the man is exploiting a power imbalance. But the wording of the provision is broader than this ("any form of unwanted ... conduct"). It is also interesting to note that the conduct is defined in terms of purpose or effect - in other words where it is experienced as hostile, humiliating and degrading, even if not intended as such. It is clear that any new provision would have to address these ambiguities.

But, more broadly, is a criminal response to this conduct desirable? It has been argued that this kind of conduct is 'gateway' conduct, contributing to the cultural acceptability of other forms of violence and abuse. This might be so, but it does not necessarily follow from this that it is appropriate to criminalise the sexist conduct, either in its own right or as a 'proxy' for the harm that might follow. It is surely necessary to be clear that if something is to be criminalised it must not only be wrong (and with some direct risk of harm), but that the criminal law should be the most appropriate form of response. And we might be concerned that this Convention (and others like it) is encouraging a rush to criminalisation. Although the Convention is at least clear that criminalisation should be seen as part of a spectrum of social, cultural and legal responses to violence against women.

What are we to make of this? In general terms this is surely an important recognition of the structural significance of gendered violence and the need for a co-ordinated and comprehensive approach to that violence. It also recognises the wide range of different forms violence can take. But there are a couple of striking features of this that I want to note. The first is the language of the Convention and notes which underline the progress that has been made by campaigners in this area. This can be seen in the Preamble, which contains statements such as: violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women;
and the need to recognise the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. It is also interesting that the Convention has, for example, an explicit provision on "awareness raising" (Art.13), and calls for explicit state support for women's groups working in this area.
The second thing that I find really striking is the broad definition of violence (Art.3): 
[Violence] shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
I have commented in an earlier post on how the definition of violence has expanded, and this is surely confirmation of that. Economic harm may be damaging to women, but I am not convinced that it should be understood as a form of violence. It is easier to understand the idea of psychological violence, which is well documented in research on domestic abuse, but the definition of psychological violence in Art. 33 as "seriously impairing a person’s psychological integrity" is once again rather vague. Overall, then, the broad definition of violence reflects a certain understanding which has developed of forms of gendered violence, but it throws up important challenges for criminalisation in this area.

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